United States of America v. DAVID NAVOR ANDRADE PEREZ, AKA David Andrade

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID NAVOR ANDRADE PEREZ, AKA
David Andrade,
Defendant-Appellant.
No. 22-50044
D.C. No. 8:18-cr-00100-JVS-2
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted January 18, 2023**
Before: GRABER, PAEZ, and NGUYEN, Circuit Judges.
David Navor Andrade Perez appeals from the district court’s judgment and
challenges the 192-month sentence imposed following his guilty-plea conviction
for distribution of methamphetamine, in violation of 21 U.S.C § 841(a)(1) and
(b)(1)(A)(viii), and aiding and abetting, in violation of 18 U.S.C. § 2(a). We have
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JAN 25 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 22-50044
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Andrade Perez contends that the district court erred in concluding that his
policy-based objections to the methamphetamine guideline did not support a
downward variance, and failed to explain adequately this decision under Federal
Rule of Criminal Procedure 32(i)(3)(B). As an initial matter, Andrade Perez’s
sentence was driven by the career offender guideline rather than the
methamphetamine guideline. In any event, Andrade Perez’s arguments fail. The
district court acknowledged its discretion to vary from the Guidelines but
permissibly declined to do so because it did not agree that the methamphetamine
guideline was too harsh. See United States v. Henderson, 649 F.3d 955, 964 (9th
Cir. 2011) (district court may vary from the Guidelines based on a policy
disagreement but is not obligated to do so where it does not have such a
disagreement). The district court did not violate Rule 32(i)(3)(B) because Andrade
Perez’s challenge to the methamphetamine guideline was not a factual objection to
the presentence report within the meaning of Rule 32. See United States v.
Grajeda, 581 F.3d 1186, 1188-89 (9th Cir. 2009). Finally, the district court
sufficiently explained the sentence, see United States v. Carty, 520 F.3d 984, 992
(9th Cir. 2008) (en banc), and the below-Guidelines sentence is substantively
reasonable, see Gall v. United States, 552 U.S. 38, 51 (2007).
AFFIRMED.

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